Role Of Juvenile Defense Counsel In Delinquency Court - Wa

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Role of Juvenile Defense Counselin Delinquency CourtNJDCNational Juvenile Defender CenterSpring 2009

NJDCRole of Juvenile Defense Counselin Delinquency CourtWritten byRobin Walker SterlingIn collaboration withCathryn Crawford, Stephanie Harrison, and Kristin HenningNational Juvenile Defender CenterSpring 2009

AcknowledgementsWe extend special thanks to the directors of the nine RegionalJuvenile Defender Centers for their trenchant suggestions, edits,and comments on the Role of Juvenile Defense Counsel. We wouldalso like to thank the juvenile defenders who attended the 12thAnnual Juvenile Defender Leadership Summit in New Orleans,Louisiana for their suggestions as well. The editing and production of the Role of the Juvenile Defense Counsel has been a truly collaborative project, and we hope that it will help juvenile defenseattorneys across the country as they work to zealously protecttheir young clients facing charges in juvenile delinquency court.ii

Table of ContentsPreamble and Scope.1A. The Origin of the Role of the Juvenile Defender.1B. Present State of Juvenile Defense: A Call for Justice.3C. Goals of These Principles.6The Role of Juvenile Defense Counsel.71. Duty to Represent the Client’s Expressed Interests.7A. Establishment of the Attorney-Client Relationship. 8B. Allocation of Decision-Making. 9C.Diminished Capacity.102. Duty of Confidentiality and Privilege. 11A. No Exception for Parents or Guardians.12B. No Exception for Client’s Best Interests.12C.Private Meeting Space.123. Duties of Competence and Diligence. 13A. Comprehensive Skill Set.13

B. Investigation.14C.Protecting Pretrial Due Process Rights.15E.Preparing for and Engaging in Dispositional Advocacy.17D. Protecting Due Process Rights at Adjudicatory Hearings.16F.Conducting Post-Disposition Representation.19G. Accessing Ancillary Services.204. Duty to Advise and Counsel. 22A. Pursuing Diversion Options.22B. Ensuring Ethical Plea Agreements.225. Duty of Communication. 23A. Communication in Court.23B. Communication outside of Court.24C.Communication and Confidentiality.24D. Communication with Detained Clients.24Endnotes. 25Appendix AABA Model Rules of Professional Conduct. 29Preamble and Scope. 29Preamble.29Scope.33ABA Model Rules of Professional Conduct. 36Rule 1.1. Competence.36iv

Rule 1.2 Scope of Representation and Allocation of AuthorityBetween Client and Lawyer.38Rule 1.3 Diligence.43Rule 1.4 Communication.45Rule 1.6 Confidentiality of Information.48Rule 1.14 Client with Diminished Capacity.56Rule 2.1 Advisor.61Appendix BTen Core Principles for Providing QualityPublic Defense Delivery Systems. 63

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Role of Juvenile Defense Counselin Delinquency CourtRole of JuvenileDefenseCounsel inDelinquencyCourtPreamble and ScopeA. The Origin of the Role of the Juvenile DefenderIn a series of cases starting in 1966, the United States SupremeCourt extended bedrock elements of due process to youthcharged in delinquency proceedings. Arguably the most important of these cases, In re Gault1 held that juveniles facingdelinquency proceedings have the right to counsel under theDue Process Clause of the United States Constitution, appliedto the states through the Fourteenth Amendment. The Courtadded juvenile defense counsel to rectify the dilemma ensnaring juveniles across the country, in which juveniles received“the worst of both worlds . . . neither the protections accordedto adults nor the solicitous care and regenerative treatmentpostulated for children.”2 The Court clearly observed thatjuvenile defense counsel’s role in delinquency proceedingsis unique and critical: “[t]he probation officer cannot act ascounsel for the child. His role . . . is as arresting officer andwitness against the child. Nor can the judge represent thechild.”3 The Court concluded that no matter how many courtpersonnel were charged with looking after the accused child’sinterests, any child facing “the awesome prospect of incarceration” needed “the guiding hand of counsel at every step inRole of Juvenile Defense Counsel in Delinquency Court1

the proceedings against him” for the same reasons that adultsfacing criminal charges need counsel.4Role of JuvenileDefenseCounsel inDelinquencyCourtThe introduction of advocates to the juvenile court systemwas meant to change delinquency proceedings in several keyways. First, it was meant to infuse the informal juvenile courtprocess with more of the jealously-guarded constitutionalprotections of adult criminal court and their attendant adversarial tenor. Perhaps more importantly, with attorneys explicitly assigned to advocate on their behalf, juveniles accusedof delinquent acts were to become participants, rather thanspectators, in their court proceedings. The Court observedspecifically that juvenile respondents needed defenders toenable them “to cope with problems of law, to make skilledinquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether [the client] has a defense and toprepare and submit it.”5With its decisions in Gault and other cases,6 the Court movedthe treatment of youth in juvenile justice systems into the national spotlight. In 1974, with a goal of protecting the rightsof children, Congress enacted the Juvenile Justice and Delinquency Prevention Act (JJDPA).7 The JJDPA created the National Advisory Committee for Juvenile Justice and Delinquency Prevention, which was charged with developing national juvenile justice standards and guidelines. The NationalAdvisory Committee standards, published in 1980, requirethat children be represented by counsel in delinquency matters from the earliest stage of the process.8At the same time, several non-governmental organizationsalso recognized the necessity of protections for youth in delinquency courts. Beginning in 1971, and continuing over a tenyear period, the Institute of Judicial Administration (IJA) andthe American Bar Association (ABA) researched, developedand produced 23 volumes of comprehensive juvenile justicestandards, annotated with explicit policies and guidelines.9The IJA/ABA Joint Commission on Juvenile Standards relied2National Juvenile Defender Center

upon the work of approximately 300 dedicated professionalsacross the country with expertise in the many disciplines relevant to juvenile justice practice, including the judiciary, socialwork, corrections, law enforcement, and education. The Commission circulated draft standards to individuals and organizations throughout the country for comments. The final standards, which were adopted by the ABA in 1982, were craftedto establish a model juvenile justice system, one that would notfluctuate in response to transitory headlines or controversies.Role of JuvenileDefenseCounsel inDelinquencyCourtBy the early 1980s, there was professional consensus that defense attorneys owe their juvenile clients the same duty ofloyalty as adult clients.10 That coextensive duty of loyalty requires defenders to represent the legitimate “expressed interests” of their juvenile clients, and not the “best interests” asdetermined by the attorney.11B. Present State of Juvenile Defense: A Call for JusticeRecognizing the need for more information about the functioning of delinquency courts across the country, as part ofthe reauthorization of the JJDPA in 1992, Congress asked thefederal Office of Juvenile Justice and Delinquency Prevention(OJJDP) to address this issue. One year later, in 1993, OJJDPresponded to Congress’ request by funding the Due ProcessAdvocacy Project, led by the ABA Juvenile Justice Center,together with the Youth Law Center and the Juvenile LawCenter. The purpose of the project was to build the capacityand effectiveness of the juvenile defense bar to ensure thatchildren have meaningful access to qualified counsel in delinquency proceedings. One result of this collaboration wasthe 1995 release of A Call for Justice: An Assessment of Accessto Counsel and Quality of Representation in Delinquency Proceedings, a national review of the legal representation of childrenin delinquency proceedings.12 The first systemic national assessment of its kind, the report laid the foundation for a closerexamination of access to counsel, the training and resourceRole of Juvenile Defense Counsel in Delinquency Court3

Role of JuvenileDefenseCounsel inDelinquencyCourtneeds of juvenile defenders, and the quality of legal representation provided by each state’s juvenile indigent defensesystem. The report highlighted the gaps in the quality of legalrepresentation for indigent children across the country.The findings of A Call for Justice prompted an outpouringof concern from judges and lawyers across the country, andpointed to the need for state-specific assessments to guide andinform legislative reforms. In response, a methodology wasdeveloped to conduct comprehensive assessments of accessto counsel and quality of representation in individual states.Since 1995, first the ABA Juvenile Justice Center, and then theNational Juvenile Defender Center, have conducted state-specific juvenile defense assessments in 16 states: Florida, Georgia, Indiana, Illinois, Kentucky, Louisiana, Maine, Maryland,Mississippi, Montana, North Carolina, Ohio, Pennsylvania,Texas, Virginia, and Washington. Re-assessments have beenconducted in Kentucky and Louisiana. County-based assessments were conducted in Cook County, Illinois, MarionCounty, Indiana and Caddo Parish, Louisiana. The NationalJuvenile Defender Center is continuously working with leaders in states who are interested in conducting juvenile indigent defense assessments.Although each state has its own idiosyncrasies, hundreds ofinterviews in assessment after assessment reaffirm the findings first uncovered in A Call for Justice. Since the Gault decision, the role of the juvenile defender has evolved to require acomplex and challenging skill set. Juvenile defense attorneysmust have all the legal knowledge and courtroom skills of acriminal defense attorney representing adult defendants. Inaddition, juvenile defenders must be aware of the strengthsand needs of their juvenile clients and of their clients’ families, communities, and other social structures. Juvenile defenders must: understand child and adolescent developmentto be able to communicate effectively with their clients, andto evaluate the client’s level of maturity and competency andits relevancy to the delinquency case; have knowledge of and4National Juvenile Defender Center

contacts at community-based programs to compose an individualized disposition plan; be able to enlist the client’s parent or guardian as an ally without compromising the attorney-client relationship; know the intricacies of mental healthand special education law, as well as the network of schoolsthat may or may not be appropriate placements for the client;and communicate the long- and short-term collateral consequences of a juvenile adjudication, including the possible impact on public housing, school and job applications, eligibilityfor financial aid, and participation in the armed forces.Role of JuvenileDefenseCounsel inDelinquencyCourtThere are many juvenile defense attorneys who, in the face ofdaunting systemic and other obstacles, offer their clients zealous, holistic, client-centered advocacy. Unfortunately, as A Callfor Justice first revealed, these attorneys are the exception andnot the norm: in jurisdiction after jurisdiction, systemic andother barriers prevent juvenile defenders from realizing theconstitutionally-mandated vision of their role. For example,on average, juvenile defenders’ caseloads are staggeringlyhigh, and these crushing caseloads have redounding repercussions: plea agreements function as a case management tooland are entered into without previous, independent investigation; pre-trial advocacy to test the strengths and weaknessesof the government’s case is often set aside; and already scarceresources, stretched thin to provide basic services, like officespace, computers, desks, and files, are not available for investigators, social workers, and expert witnesses. Also, across thecountry, juvenile court suffers from a “kiddie court” mentality where stakeholders do not believe that juvenile court isimportant. Finally, in some jurisdictions, because they viewjuvenile court first and foremost as an opportunity to “helpa child,” judges and other system participants undermine attorneys’ efforts to challenge the government’s evidence andprovide zealous, client-centered representation, consideringsuch advocacy an impediment to the smooth function of thecourt. As a result, many juvenile courts still operate in a preGault mode in which the defense attorney is irrelevant, realRole of Juvenile Defense Counsel in Delinquency Court5

lawyering cannot occur, and the fair administration of justiceis impeded.Role of JuvenileDefenseCounsel inDelinquencyCourtC. Goals of These PrinciplesThe Principles that follow are developed to describe theunique and critical role juvenile defense attorneys play injuvenile proceedings. Hundreds of interviews with juvenilejustice system stakeholders reveal that the juvenile defenseattorney’s role is perceived differently by different courtroomactors. While there are of course exceptions, across the country, prosecutors and probation officers often view zealous juvenile defense attorneys as obstructionists who overlook thecompelling needs of their clients in service to the single andmonolithic goal of “getting the client off, and communicate,in direct and indirect ways, that the defender should be lessadversarial. Similarly, judges rely on juvenile defense attorneys to advocate on the child’s behalf, but only as a necessarycog in the machinery of the appearance of fairness and of judicial economy, and not as a zealous, client-centered advocate. Juvenile defenders themselves are unsure of their role.Most understand that, in theory, they are bound to zealouslyrepresent their clients’ expressed interests. Nonetheless, inpractice, many yield to the unified pressure from other stakeholders and from the seemingly irresistible momentum of theproceedings, and advocate for their clients’ best interests. Thereasons for this capitulation vary. Some set aside their ethical obligation because of a genuinely misguided understanding of their role; others sacrifice zealous advocacy becausethey have to triage staggering caseloads supported by scantresources; still others bow to systemic barriers that interferewith their advocacy. The defenders’ role seems all the moreambiguous in specialty boutique courts, like drug court andmental health court.In the vision of the Gault Court, the juvenile defense attorneyis a critical check on the power of the state as it imperils the client’s liberty interests. Defenders are not obstructionists; they6National Juvenile Defender Center

protect the child’s constitutional rights. They do this throughtheir practical, everyday duties – from interviewing the childoutside of the presence of the child’s parents, to objecting toinadmissible but informative evidence at adjudicatory hearings, to advocating for the least restrictive alternative at disposition, to pressing, at every stage, for the client’s expressedinterests. Each of these day-to-day duties has its grounding indefense counsel’s mandatory ethical obligations. These Principles serve to inform indigent defense providers and the leadership of indigent defense organizations, judges, prosecutors,probation officers, and other juvenile justice stakeholders thespecifics of the role of defense counsel in the delivery of zealous, comprehensive and quality legal representation to whichchildren charged with crimes are constitutionally entitled.Role of JuvenileDefenseCounsel inDelinquencyCourtThe Role of Juvenile Defense Counsel1. Duty to Represent the Client’s Expressed InterestsABA Model Rules of Professional Conduct (Model Rules): Preamble;1.14(a) Client with Diminished Capacity; 1.2(a) Scope of Representationand Allocation of Authority between Client and LawyerAt each stage of the case, juvenile defense counsel acts as theclient’s voice in the proceedings, advocating for the client’sexpressed interests, not the client’s “best interest” as determined by counsel, the client’s parents or guardian, the probation officer, the prosecutor, or the judge. With respect to theduty of loyalty owed to the client, the juvenile delinquencyattorney-client relationship mirrors the adult criminal attorney-client relationship. In the juvenile defender’s day-to-dayactivities, the establishment of the attorney-client relationshipis animated by allocating the case decision-making, and practicing the special training required to represent clients withdiminished capacity.Role of Juvenile Defense Counsel in Delinquency Court7

Role of JuvenileDefenseCounsel inDelinquencyCourtA. Establishment of the Attorney-Client Relationship:Juvenile defense counsel do not assume they knowwhat is best for the client, but instead employ a clientcentered model of advocacy that actively seeks theclient’s input, conveys genuine respect for the client’sperspective, and works to understand the client inhis/her own socioeconomic, familial, and ethnic context.1. At every stage,13 juvenile defense counselworks to provide the client with complete information concerning all aspects of the case,including honest predictions concerning boththe short-term (e.g., whether the client will bedetained pending trial or whether the clientwill win the probable cause hearing) and longterm (e.g., whether the child will be acquittedor whether, if found involved, the child will becommitted and/or face additional collateralconsequences) goals of the case. Juvenile defense counsel’s abiding purpose is to empowerthe client to make informed decisions. Counsel’s advice to the client about the likely advantages and disadvantages of different casescenarios is legally comprehensive, candid,and objectively relayed using age-appropriatelanguage.2. Operating under a client-centered model ofadvocacy allows juvenile defense counsel toenhance immeasurably the fundamental fairness of the system. Because no other courtroomactor serves the juvenile’s expressed interests,without juvenile defense counsel, the juvenilewould be subjected to a pre-Gault proceedingin which protecting the juvenile’s due processrights are relegated to a mere technicality.8National Juvenile Defender Center

B. Allocation of Decision-Making: Unlike the othercourtroom actors, who have no obligation to considera juvenile’s expressed interests in their recommendations and orders, juvenile defense counsel allows clients, to the greatest extent possible, to be the primarydecision-makers in their cases.Role of JuvenileDefenseCounsel inDelinquencyCourt1. Juvenile defense counsel enables the client,with frank information and advice, to directthe course of the proceedings in at least the following areas:a. whether to cooperate in a consent judgment, diversion, or other early disposition plans;b. whether to accept a plea offer;c. if the client can choose, whether to betried as a juvenile or an adult;d. if the client can choose, whether to havea jury trial or a bench trial;e. whether to testify in his own defense;andf.whether to make or agree to a specificdispositional recommendation.2. Other decisions concerning case strategy andtactics to pursue the client’s goals, like the determination of the theory of the case, what witnesses to call, or what motions to file, are leftto juvenile defense counsel, with the criticallimitations that counsel’s decisions 1) shall notconflict with the client’s expressed interestsconcerning the areas listed in c, and 2) shall notconflict with the client’s expressed interests inany other case-related area.Role of Juvenile Defense Counsel in Delinquency Court9

Role of JuvenileDefenseCounsel inDelinquencyCourtC. Diminished Capacity: Minority does not automatically constitute diminished capacity such that a juveniledefense attorney can decline to represent the client’sexpressed interests. Nor does a juvenile’s makingwhat juvenile defense counsel considers to be a rashor ill-considered decision constitute grounds for finding that the client suffers from diminished capacity. Infact, because of the unique vulnerabilities of youth, itis all the more important that juvenile defense attorneys firmly adhere to their ethical obligations to articulate and advocate for the child’s expressed interest, and to safeguard the child’s due process rights. Inother words, in direct contrast to the pervasive informality that characterizes juvenile court practice in somany jurisdictions, minority sharpens defense counsel’s ethical responsibilities, instead of relaxing them.1. In light of current brain development research,it is clear that minority critically affects thescope of the juvenile attorney- juvenile clientrelationship. Current brain development research posits that youth are categorically lessculpable than the average adult offender. Thisresearch has gained wide acceptance, as indicated most recently by the United States Supreme Court’s opinion in Roper v. Simmons,543 U.S. 551(2005), which struck down the juvenile death penalty as unconstitutional. TheRoper Court concluded that youths are less culpable than the average adult offender becausethey: (1) lack maturity and responsibility, (2)are more vulnerable and susceptible to outsideinfluences, particularly negative peer influences, and (3) are not as well formed in characterand personality as, and have a much greaterpotential for rehabilitation than, adults. Id. at569-570. This research requires juvenile defensecounsel to be adept at using age-appropriate10National Juvenile Defender Center

language, motivational interviewing, visualaids, and other techniques effective in communicating with, and more specifically, effectivein translating legal concepts to, children.2. It is crucial to recognize that this research doesnot provide an argument for counsel to disregard a child’s expressed interests merely because of the child’s minority. To the contrary,the unique vulnerabilities of youth, make itall the more important for the child’s lawyersto help the child identify and articulate his orher views to key players in the juvenile justicesystem. Any juvenile client capable of considered judgment is entitled to a normal attorneyclient relationship. And, even youth of diminished capacity and other vulnerabilities haveviews, concerns and opinions that are entitledto weight in legal proceedings.Role of JuvenileDefenseCounsel inDelinquencyCourtAdditional sources: IJA/ABA Juvenile Justice Standards, Standards Relating toCounsel for Private Parties (Juvenile Justice Standards): 3.1 TheNature of the Lawyer-Client Relationship; 5.2 Control and Direction of the Case; 9.3(a) Counseling Prior to Disposition ABA Standards for Criminal Justice, Standards Relating to theDefense Function (Criminal Justice Standards): 4-3.1 Establishment of Relationship2. Duty of Confidentiality and PrivilegeModel Rules: 1.6 Confidentiality of InformationJuvenile defense counsel is bound by attorney-client confidentiality and privilege. The duty of confidentiality that juveniledefense counsels owe their juvenile clients is coextensive withRole of Juvenile Defense Counsel in Delinquency Court11

the duty of confidentiality that criminal defense counsels owetheir adult clients. This duty includes:Role of JuvenileDefenseCounsel inDelinquencyCourtA. No Exception for Parents or Guardians: There is noexception to attorney-client confidentiality in juvenilecases for parents or guardians. Practically, this factmeans that juvenile defense counsel has an affirmative obligation to safeguard a client’s information orsecrets from parents or guardians; that interviewswith the client must take place outside of the presence of the parents or guardians; and that parents orguardians do not have any right to inspect juveniledefense counsel’s file, notes, discovery, or any othercase-related documents without the client’s expressedconsent. While it may often be a helpful or even necessary strategy to enlist the parents or guardians asallies in the case, juvenile defense counsel’s primaryobligation is to keep the client’s secrets. Informationrelating to the representation of the client includes allinformation relating to the representation, whateverits source.B. No Exception for Client’s Best Interests: There is noexception to attorney-client confidentiality in juvenilecases allowing disclosure of information in serviceto what counsel, parents or guardians, or any otherstakeholders deem to be the client’s best interests.Even if revealing the information might allow the client to receive sorely-needed services, defense counselis bound to protect the client’s confidences, unless theclient gives the attorney express permission to revealthe information to get the particular services, or disclosure is impliedly authorized to carry out the client’s case objectives.C. Private Meeting Space: To observe the attorney’sethical duty to safeguard the client’s confidentiality,12National Juvenile Defender Center

attorney-client interviews must take place in a private environment. This limitation requires that, at thecourthouse, juvenile defense counsel should arrangefor access to private interview rooms, instead of discussing case specifics with the client in the hallways;in detention facilities, juvenile defense counsel shouldhave a means to talk with the client out of the earshotof other inmates and guards; and in the courtroom, juvenile defense counsel should ask for a private spacein which to consult with the client, and speak with theclient out of range of any microphones or recordingdevices.Role of JuvenileDefenseCounsel inDelinquencyCourtAdditional sources: Juvenile Justice Standards: 3.3 Confidentiality3. Duties of Competence and DiligenceModel Rules: 1.1 Competence, 1.3 DiligenceA juvenile defense attorney provides competent, prompt, anddiligent representation based in legal knowledge, skill, thorough preparation, and ongoing training.14 With respect to thejuvenile defender’s day-to-day activities, the Duties of Competence and Diligence are expansive, encompassing the obligations to investigate, to zealously protect the child’s due process rights from arrest through the close of the case, to engagein dispositional advocacy, and to access ancillary services.A. Comprehensive Skill Set: Juvenile defense counselpossesses a comprehensive skill set that meets the client’s legal, educational, and social needs.1. Competent representation in juvenile delinquency matters requires legal training thatencompasses rules of evidence, constitutionallaw, juvenile law and procedure, and criminalRole of Juvenile Defense Counsel in Delinquency Court13

Role of JuvenileDefenseCounsel inDelinquencyCourtlaw and procedure, as well as trial skills, suchas examining witnesses, admitting documentsinto evidence, and making legal arguments before the court, and appellate procedure.2. Competent juvenile defense counsel is alsowell-versed in the areas of child and adolescent development. Child and adolescent development research intersects with counsel’srepresentation in many ways. For example,counsel might rely on recent developmentresearch in detention and disposition arguments. Counsel also might use the research tohelp counsel convey complex legal concepts inage-appropriate language.3. Competent juvenile defense counsel has aworking knowledge of and maintains contacts with experts in ancillar

to Counsel and Quality of Representation in Delinquency Proceed-ings, a national review of the legal representation of children in delinquency proceedings.12 The first systemic national as-sessment of its kind, the report laid the foundation for a closer examination of access to counsel, the training and resource

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